If the performance of the California bar in Konigsberg [v. State Bar of California]

can be characterized as inglorious, the performance of the Illinois Bar in In re George Anastaplo in 1961 is more inglorious still. But once again the Supreme Court, by a 5 to 4 vote, affirms the barring of the applicant from the practice of law. The decision is announced on the same day as Konigsberg II. And Justice [John M.] Harlan is again the spokesman for the Court.

On its facts Anastaplo is very similar to Konigsberg. In both instances an otherwise qualified applicant gets enmeshed in an atypically elaborate investigation into his fitness by the bar committee, is put the question about membership in the Communist Party, and is barred from admission because of his refusal to answer that one question. And in both instances the applicant is an articulate expositor of his reasons for declining on principle to cooperate. But our interest in Anastaplo for present purposes resides precisely in those details in which it differs on its facts from Konigsberg. There are four differences: (i) There is nothing in the record comparable to the testimony that [Raphael] Konigsberg had attended some Communist Party meetings in 1941; there is absolutely nothing to occasion the committee asking [George] Anastaplo about Communist affiliation—except a somewhat quixotic answer on his written application to the effect that the “right of revolution” was a basic principle of the American Constitution. The Illinois Bar Committee, displaying its illiteracy and ineptness, is sufficiently alarmed by this talk of revolution to launch its inquiry into Communist Party membership. (ii) There is in Illinois law nothing comparable to the California requirement of non-advocacy of violence; there is only a good character requirement. (iii) There is a very spotty record on whether the committee had warned Anastaplo adequately that it had, in effect, an automatic exclusion rule, even though it is questioning him after the Konigsberg I decision had made the matter salient; moreover, it is not at all clear that Illinois regards itself as having such a rule. (iv) The final vote against Anastaplo in his second appearance before the Illinois committee was only 11 to 6. It appeared from the committee’s final report that “certain members of the Committee (who are included within the majority…)” were influenced by his position on a right of revolution, a ground the [United State Supreme] the Court disallows. Hence arguably the committee majority was “corrupted” by its erroneous view on this point and might have decided differently had it understood that this ground was not available to it. These differences all fall on Anastaplo’s side of the line, and at least points (i) and (ii) require some extension of the holding in Konigsberg II. Nevertheless, Justice Harlan treats the case as essentially “settled” by the decision in Konigsberg II,[59] and thus exposes some further difficulties with the rationale of that decision.

The Konigsberg II theory appeared to have been that the committee in the course of its investigation into Konigsberg had come upon material—the testimony about attendance at Party meetings in 1941—which could possibly have generated some doubts about the credibility of his denial of advocacy of violent overthrow; and that therefore it was unable to make up its mind about non-advocacy. Surely it is a different case, if there is nothing in the record to cause the applicant’s credibility to be in issue. On what points did the committee deem it necessary to test and probe Anastaplo’s credibility?

If then Illinois had an automatic rule excluding the applicant upon refusal to answer any question, the rule was unconstitutionally arbitrary as applied to Anastaplo in contradistinction to Konigsberg. Justice Harlan does comment on the challenge put in this form:

It is sufficient to say in answer to the first contention that even though the Committee already had before it substantial character evidence altogether favorable to Anastaplo, there is nothing in the Federal Constitution which required the Committee to draw the curtain upon its investigation at that point. It had the right to supplement that evidence and to test the applicant’s own credibility by interrogating him.[60]

The First Amendment balancing analysis is also in trouble. On the state’s side of the scale there is now only the severely attenuated interest in testing not credibility in general but the credibility of an applicant whose credibility cannot rationally be in doubt.

In brief, the rule Justice Harlan endorses in Anastaplo turns the questioning into a non-Communist loyalty oath for bar applicants. Moreover, the Illinois procedure compares unfavorably to conventional oaths. It is not applied uniformly and evenhandedly to all applicants; and it is not evaluated as a substantive condition limiting the privilege of law practice but is evaluated as only a step in the investigatory process and is not conclusive.

We have remarked previously on how strangely alienated Justice Harlan seems to be by the refusal to cooperate in an investigation. There is a passage at the end of the Anastaplo opinion which may throw some light on his reaction, at least in the context of a bar inquiry. He does not think Illinois will continue to bar Anastaplo “any longer than his refusal to answer.” “In short,” he writes, “petitioner holds the key to admission in his own hands.”[61]

The applicant, as Justice Harlan sees it, is justified in testing his constitutional rights by refusing to answer. But once the validity of the question has been authoritatively established, there is nothing admirable in continuing to refuse to answer. The practical problem of the Anastaplo case has now been settled; he has had his test day in court; he should now answer the question and proceed with his career at the bar. Whatever can be said on behalf of civil disobedience, it does not generate any legal immunities.

In fact, however, the case has left an impasse which today remains unresolved. Anastaplo will not approach the committee with a willingness to answer the question. And the committee, it might be noted, having won its point, has not approached him with a willingness to admit him without again insisting on the ceremony of its utterly pointless and expensive question.[62]

It is only now fully apparent how stubbornly distinctive the disclosure issue becomes in the context of the bar admissions inquiry. It is not, as we have noted, quite like the loyalty oath. Nor is it like disclosure intended in itself to act as a sanction or a remedy for the evil apprehended, as in the statute requiring lobbyists to register or the Subversive Activities Control Act requiring “Communist-action” groups to disclose their membership and their sponsorship of mail or broadcasts. Nor—and this is the point Anastaplo finally makes evident—is it like disclosure in the legislative investigation context. There the chilling effect on First Amendment freedoms comes from the behavioral consequences of the public ceremony of disclosure. In the bar admission context these consequences are, as Justice Harlan argues, considerably lessened and the impact on First Amendment freedoms arises from the conditioning of admissions. The distinction is elusive. Perhaps it can be clarified by this example: Suppose a state makes membership in the Party a ground for rejecting the applicant. If he is then asked whether he is a member, the objection goes not to the chilling effect of the question and the disclosure as in the legislative investigation but to the condition itself.

Finally, a few words about Justice [Hugo L.] Black’s dissent in Anastaplo. If he was thrown off balance in Konigsberg, he is fully in command of his views in Anastaplo. His opinion is highly effective and flavorsome. He examines the record in great detail and gives a full picture of Anastaplo’s personal dignity and eloquence as well as of the bar committee’s ineptness. The committee, we discover, was so upset by Anastaplo’s talk about a “right of revolution” in the natural law sense of the Declaration of Independence that it asked him not only about Communism but also about belief in God, finally desisting only when Anastaplo pointed out the old Illinois case on which it was relying had long ago been overruled.

Further, Justice Black is sharply critical of the notion that the committee was in a posture of needing to test the credibility of Anastaplo’s prior answers:

Thus, it is against the background of a mountain of evidence so favorable to Anastaplo that the word “overwhelming” seems inadequate to describe it that the action of the Committee in refusing to certify Anastaplo as fit for admission to the Bar must be considered….it is difficult to see what possible relevancy answers to the questions could have had in the minds of these members [of the majority] of the Committee after they had received such completely overwhelming proof beyond a reasonable doubt of Anastaplo’s good character and staunch patriotism.[63]

He also pungently and concisely repeats his criticism of balancing:

If I had ever doubted that the “balancing test” comes close to being a doctrine of governmental absolutism—that to “balance” an interest in individual liberty means almost inevitably to destroy that liberty—those doubts would have been dissipated by this case.[64]

In the end, what is moving about Justice Black’s dissent is its special generosity toward Anastaplo personally. He comes very close to embodying Black’s idea of what a lawyer should be. Black quotes at length and with evident approval Anastaplo’s statements to the committee about the proper role of the bar in American democracy. Black sees him as rejected in reality because he believed too much in the principles of the Declaration of Independence. His final praise is put ironically: “The very most that fairly can be said against Anastaplo’s position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself.”[65] Thanks to the dissent of Justice Black, the Anastaplo case has in a very real sense a happy ending, although Anastaplo is still not a member of the Illinois bar. He earns the distinctive reward of being enshrined in the pages of the United States Reports in a living opinion by one of the most cherished of justices.

[59] Justice Harlan does discuss in some detail, however, the adequacy of the warning and the impropriety of the question about the right of revolution. The Harlan opinion suggests the gravest doubt that rejecting Anastaplo for his views on revolution would have been constitutional. But it also rejects Justice Black’s conclusion that this was the real reason the Committee had rejected him.

[62] Since these words were written the committee has, on its own initiative, approached Anastaplo. In 1978 the committee reopened the matter, heard testimony as to Anastaplo’s good character, and voted 13 to 4 to recommend him to the Illinois Supreme Court for admission to the bar. The Court informed the committee

that “it would be inappropriate to act on this matter in its present posture” and recommended that Anastaplo apply anew for admission to the bar. This Anastaplo has declined to do.—Ed. [An addition to this note in 2010 by George Anastaplo: The Illinois character committee which reopened the Anastaplo matter in 1978 was chaired by a borther of Justice John Paul Stevens. And, on more than one occasion, a son of one of the five-man majority against George Anastaplo in 1961 has quoted with approval, in public statements, the closing sentence of Justice Black in his Anastaplo dissent: “We must not be afraid to be free.”]

I had occasion to make on March 6, 1975, the following remarks about Harry Kalven, Jr.

This series of six weekly law lectures here at Rosary College, of which my talk tonight [“The Trial of Sir Thomas More”] is the conclusion, has been dedicated to the memory of Harry Kalven, Jr., Professor of Law at The University of Chicago and a friend of this college. Mr. Kalven, who died last October, was to have given one of the lectures in this series.

Dr. Lawrence Freedman opened the inaugural lecture of this series by likening Harry Kalven to a jeweler, a craftsman who would hold people and arguments up to the light to bring out the best in them. And when he found a gem of quality—a man or woman, an argument, a turn of phrase—he would treasure it.

Among the jewels he treasured—and in this, as in several other ways, he was like Thomas More, another man of sweetness and wit, serious about his civic duties and born for friendship—among the jewels Harry Kalven treasured was his family. In assessing many men of talent and distinction, the less said of their wives, the better—especially if those wives are themselves so talented or so independent-minded as to be inclined to resent their husbands’ accomplishments. But in his wife, a quite talented woman in her own right, Harry Kalven found a jewel, a companion of many years who patiently listened to his always youthful speculations, who took pride in his triumphs, and who loyally ministered to him in his afflictions. They enjoyed a companionship which could instruct their friends (as Thomas More’s life instructed his friends) in the satisfactions of a good marriage. It is reassuring, at a time when women are desperately trying to “define their roles,” to be able to treasure the memory of the fruitful life Betty Kalven shared with her husband.

The death, and even more the premature death, of such a man as Harry Kalven affects, and affects deeply, all who had come to know and to depend upon him. But his many writings and the generations of students be helped shape do remain—as do, in the hearts of those close to him, the generous appraisals which he had made of them and which leave them forever enriched.

Harry Kalven lives on in this form more surely, more vitally, than it is ever given most men to live at all. I am reminded, in thus recalling him and the heartening influence he exercised in many crises, of the description in Shakespeare’s Henry V of the young king walking among the outnumbered English soldiers in France the night before the fateful Battle of Agincourt [Act IV, Prologure, 28-47]:

…O, now, who will behold

The royal captain of this ruin’d band

Walking from watch to watch, from tent to tent,

Let him cry “Praise and glory on his head!”

For forth he goes and visits all his host,

Bids them good morrow with a modest smile

And calls them brothers, friends, and countrymen.

Upon his royal face there is no note

How dread an army hath enrounded him;

Nor doth he dedicate one jot of color

Unto the weary and all-watched night,

But freshly looks, and overbears attaint

With cheerful semblance and sweet majesty;

That every wretch, pining and pale before,

Beholding him, plucks comfort from his looks.

A largess universal, like the sun,

His liberal eye doth give to every one,

Thawing cold fear; that mean and gentle all

Behold, as may unworthiness define,

A little touch of Harry in the night.

[Copied from George Anastaplo, Human Being and Citizen: Essays on Virtue, Freedom and the Common Good (Chicago: Swallow Press, 1975), pp. 317-18; 43 University of Chicago Law Review 13-14 (1975-1976).]